Reflections on Positive Action in the United Kingdom

1
Reflections on Positive Action in the United
Kingdom

• ROBIN ALLEN QC
• CLOISTERS

2
PARLIAMENTS RELUCTANCE TO SPEAK OF POSITIVE
ACTION

• No use of positive action in any primary
  legislation at all
• Reference to positive action in the explanatory
  memorandum for the Sex Discrimination (Election
  Candidates) Act 2002
• First explicit use in the Religion and Belief,
  Sexual Orientation and Age Regulations
• Consistent with overall poor connotation of
  positive discrimination

3
POST WAR POSITIVE OBLIGATIONS FOR DISABLED

• Disabled Persons Employment Act had obligation on
  large employers to appoint quotas of registered
  disabled persons
• Lesson to be learnt from ultimate failure of this
  legislation
• Not time limited to period post war
• Depended on disabled persons willing to register
• Poor enforcement of quota system
• Dead letter long before Act repealed

4
POSITIVE ACTION THROUGH ENFORCEMENT OBLIGATIONS

• Tribunal powers under Sex Discrimination Act 1975
  and Race Relations Act 1976 to make remedial
  recommendations enforceable by financial
  penalties
• Appeal court rulings that these could not be used
  as a form of positive action because of the
  connotation of positive discrimination
• Now rarely used

5
GENUINE OCCUPATIONAL REQUIREMENTS

• Defence to discrimination complaints in the
  employment field where genuine occupational
  requirement proved
• Reason for the requirement may lie in genuine
  need to provide services to a disadvantaged group

6
POSITIVE ACTION THROUGH TRAINING

• Sex Discrimination and Race Relations Acts permit
  positive action in targetting training
• Must be evidence of under-representation
• Note no obligation to act
• Unsatisfactory limits on these provisions since
  they do not permit employment

7
POSITIVE ACTION THROUGH MAINSTREAMING

• No general mainstreaming obligation in the UK
• Section 71 RRA - first provision to impose an
  obligation on local authorities to promote
  equality and good relations
• Relatively weak obligation to have due regard
• Strength of obligation now lies in the detail of
  delegated legislation and Codes of Practice on
  public equality duties

8
POSITIVE ACTION AND SUNSET CLAUSES

• Compliance with international standards on
  special measures
• Sex Discrimination (Election Candidates) Act 2002
• Northern Ireland Policing Legislation

9
POSITIVE ACTION HOT SPOTS

• Ethnic minority disadvantage and the problems of
  definition
• Mismatch between public perceptions of what ought
  to be permissible and what is MOBO, Black
  Business Awards, Womens Literature Prizes,
  Police Recruitment and Retention
• Lack of unifying theory about purpose of positive
  action

10
POSITIVE ACTION AND EQUALITY ACT 2006

• A changing concept of equal opportunity with
  greater emphasis on
• individuality,
• multiple identities,
• mutual respect, and
• dignity.

11
POSITIVE ACTION AND THE NEW FEDERALISM

• Already different approaches in Northern Ireland
  to Great Britain
• Equality Act 2006 recognises importance of
  differences between Scotland Wales and England
• Will this lead to different regional approaches?

12
SOME KEY TASKS

• A clearer idea about when positive action should
  be mandatory and when it is permissive
• Expanding the limits of what is permissible to
  the furthest under EC and international law norms
• Clarifying the relationship between mainstreaming
  and positive action
• Addressing multiple disadvantage
• Strengthening Tribunal/Court remedial powers